Tag: condoms

“Direct Threat” Defense to Discriminating Against HIV+ and Hep C+ Performers

Recently, there has been much discussion about whether performers in the industry who are HIV+ or Hep C+ or even previously infected with a disease such as syphilis should or could be allowed to perform again, even with condoms. This author has seen numerous tweets, forum message board posts and comments debating whether a production company could knowingly discriminate against a performer who has been infected with a non-curable disease that would be considered a disability under the ADA (Americans with Disabilities Act).

Many commentators and arm-chair attorneys have put forth the notion that to not allow such performers to work in the adult entertainment industry as performers in front of the camera would amount to an unlawful discriminatory act, actionable in court. While this might be true, employers do have a defense to such if they can establish that the infected employee is a “direct threat to the health and safety” of the other performers on set. OSHA and CalOSHA require that all workplaces are safe and free from hazards for all employees.

The direct threat defense is a narrow exception to the general rule that employers may not discriminate based on disability. An employer’s determination that an employee poses a direct threat cannot be based on fears, misconceptions, or stereotypes about the employee’s disability. The employer must make a reasonable medical judgment, relying on the most current medical knowledge and the best available objective evidence.

In deciding whether a direct threat exists, an employer should consider:

  • the duration of the risk
  • the nature and severity of the potential harm
  • how likely it is that the potential harm will occur, and
  • how imminent the potential harm is.

These factors must be weighed against each other to decide whether a direct threat is present. Even if an infected performer is using a condom does this negate any and all possibility of transmission of HIV or other various bloodborne pathogen illnesses during a scene ? What if the condom breaks ? What if the male performer prematurely ejaculates inside of the vaginal or anal cavity or his co-performer ? What risk is there to other members of the crew ? These are questions that need to be answered and addressed by not only the production company staff but also their medical team.

In 2002 the United States Supreme Court squarely decided this issue in the seminal case of Chevron USA Inc. v. Echazabal. Mario Echazabal worked at Chevron’s El Segundo, California oil refinery for some twenty years. During this time, he worked as a laborer, helper, and pipefitter for various maintenance contractors, primarily in the coker unit. In 1992, Echazabal applied to work directly for Chevron at the refinery’s coker unit as a pipefitter/mechanic. He again applied in 1995 for the position of plant helper. On both occasions, Chevron determined that Echazabal was qualified for the job and could perform its essential functions based on his past work history, and extended Echazabal job offers contingent on his passing a physical examination. In late 1993, Echazabal was diagnosed as having chronic active Hepatitis C.

After examination and review, Chevron’s physicians concluded that Echazabal should not be exposed to the solvents and liver-toxic chemicals in the refinery and Chevron withdrew its offer to hire him. They reached this conclusion even though Echazabal’s physicians had not issued any restrictions precluding him from working in the refinery.

Chevron’s decision was based on a medical assessment-which Echazabal contested was not grounded in current medical knowledge or the best available objective evidence-of the ability of Echazabal’s liver to cleanse itself of the chemicals to which he had been, and would continue to be, exposed in the refinery.

The Supreme Court held that before excluding Echazabal as a direct threat, Chevron was required under EEOC regulations to show that it had made an individualized assessment of his then current ability to perform essential job functions. This evaluation was required to have been derived from current medical knowledge and objective evidence.

The EEOC regulations, which were upheld in Chevron, set forth four factors for determining whether a direct threat exists: (1) the potential duration of the threat; (2) the nature and severity of the threat; (3) the likelihood that the threat will occur; and (4) the imminence of the threat. The Supreme Court found this approach reasonable because it supports a particularized analysis of the harm to the employee.

Even though Echzabal posed no harm to any other employee, his Hepatitis C combined with the exposure to the toxins at the refinery posed a threat to his own life. The Supreme Court held that even a threat to one’s self was enough to find that Chevron did not discriminate against Echzabal and remanded the case back to the Ninth Circuit for further hearings. Under the EEOC regulations, Chevron bore the evidentiary burden of establishing the existence of a direct threat. The individualized determination of direct threat also required Chevron to prove that possible accommodations were examined and found not to exist within reason.

I have highlighted that last sentence since it is so important in this matter. While it may be medically possible to determine that a HIV+ or Hep C+ performer is a “direct threat” under the four factors (again each case is different and will be factually based on how and what type of content each company produces) it does not mean that you can simply not hire that performer for any position on the set. It would be recommend that if another position is available (camera person, production assistant, videographer, lighting, craft services ect) that does not require the possibility of fluid transmission, that the HIV+ or Hep C+ performer be employed in that capacity. There is no basis under the “direct threat” defense that an HIV+ or Hep C+ person could not work in any other capacity on set. Failure to accommodate a potential employee’s medical condition can and will likely result in a claim of discrimination with the EEOC or California’s equivalent FEHA.

Therefore, this author cautions any studio or employer in the adult industry that is faced with the potential hiring of an chronically infected performer to seek the legal advice of an attorney experienced and knowledgeable in employment law before making any decisions or even comments to the potential performer. Remember, each potential hire will require an individual assessment as the direct threat. A studio cannot make a blanket decision that they will simply not hire a chronically infected performer.

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Testing and Condoms: Straight Porn vs. Gay Porn

As I continue to research the issue of Ballot Measure B, the “Condoms in Porn” law, it became apparent that we have a divided industry. Actually it is more like two separate and distinct industries. We share common interests. We often share the same distribution channels and profit streams. There are now even companies that produce both gay and straight content ( ie., Naughty America-> http://www.suite703.com/ and Manwin-> http://www.men.com/ ). San Francisco and Los Angeles lie only 382 miles from each other but they might as well be on different coasts. When it comes to the issues of testing and condoms we could not be any more different or diametrically opposed.

The straight industry tests and doesn’t usually use condoms. The gay industry rarely tests and usually uses condoms, though in recent years even the use of condoms in gay porn is diminishing while testing is increasing. For performers in the gay community the issue of HIV status is treated as a closely guarded secret while in the straight industry test results are passed out like candy at a five year old’s birthday party.

In the straight industry if a performer is HIV+ there simply is no work for them. According to an article in Out Magazine, according to Michael Stabile, then Marketing Director for NakedSword.com, it was estimated that nearly 50% of all performers in gay porn are HIV+ ( Please see:  http://www.out.com/entertainment/2007/07/23/baring-truth?page=0,1 ). A survey by TheSword.com of 100 gay male performers put that estimate closer to a 30% HIV+ rate (Please see: http://www.advocate.com/health/2009/08/12/business-pleasure?page=0,1 ).

Kent Taylor of Raging Stallion Studio claims;

“We don’t currently ask [about HIV status]. We assume everyone is [HIV-positive], and if they say they are not, we assume they are lying.”

Michael Lucas, owner of Lucas Entertainment, does not believe that HIV status should be discussed in polite circles ( Please see: http://www.advocate.com/politics/commentary/2011/09/27/oped-live-world-where-everyone-has-hiv )

“I’m in favor of a “don’t ask, don’t tell” policy. Not in the military, of course — those days are behind us — but in the bedroom. What I’m talking about, specifically, is HIV. And my point is that, at least when it comes to sex, we should talk about it less.”

So in gay porn it is a matter of not testing and/or not sharing of HIV status and just simply using a condom to protect the performers. However, do condoms really protect the performers ? Does less than complete adherence to condom use even in a performer’s private sexual life keep them safe ? According to Stabile ( Please see: http://www.out.com/entertainment/2007/07/23/baring-truth?page=0,1 );

I’ve talked to some of them [gay male performers], and they say, ‘The only time I ever have sex with a condom is on-screen.’

Therefore, if some gay performers are only using condoms on set and not in their personal lives and not testing, it is impossible to know actually how many HIV transmissions are occurring on gay sets. Michael Weinstein of the AIDS Healthcare Foundation is not concerned with performer health and safety in the gay industry because according to a statement he made to this author at a September 17, 2012 press conference “the majority of gay porn is made with condoms.” His belief is that condoms protect.

This opinion is echoed by Michael Lucas;

“In fact, it’s hard to get HIV even from sex — as long as you use a condom. I dated a positive guy for two years in the 1990s; we had safe sex almost every day, and I never seroconverted. Today, it is even more difficult to become infected through protected sex. Recent studies suggest that HIV-positive men who are taking their medications pose a vastly reduced risk of transmitting the virus.”

Obviously there is a school of thought in the gay porn production community that test results do not really mean much if you are using a condom. Most gay studios only use condoms for anal sex. Rarely are they used for oral sex. Condoms may protect from HIV but they do not protect from oral chlamydia, gonorrhea, HPV and herpes if they are not being used. How many gay performers have contracted chlamydia, gonnorhea and HPV of the throat or herpes simplex 2 around their mouths ? Without testing there is simply no way to know. And therefore Michael Weinstein’s belief that gay performers are some how better protected from STIs because they use a condom for anal sex is terribly flawed logic.

In straight porn there is almost no one that will work with a known HIV+ positive performer with or without a condom. Matter of fact, the way the FSC/APHSS testing system works is to flag a performer that tests positive for HIV. The database will indicate that they are not cleared to work. At that point the straight industry would undergo a complete shut down of production until a full tree of potential exposures could be established and all performers that had been exposed re-tested. Any positive performers would then be re-tested again to confirm their status. This is a completely different from the gay industry that almost assumes all performers are HIV+.

According to many producers in straight porn, mandatory condoms would decimate the industry in Los Angeles. According to producers in gay porn, mandatory testing would decimate the industry in San Francisco ( Please see: http://www.advocate.com/health/2009/08/12/business-pleasure?page=0,1 ).

So how does an industry divided rectify this situation and come together to be united ? Can that even be achieved ? Can there be common ground reached to ensure profits while maintaining worker safety and participation ? The issues of government mandated condoms or industry mandated testing must be discussed openly. As more performers cross in-between both sides of the industry this topic will only become more heated and divisive if not handled properly.

 

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More Condom Facts: Latex Allergies Can Kill…

One of the most troublesome aspects of the condom use in the adult industry is the possibility of a performer developing a latex allergy. When some people hear the word allergy they think running nose, itchy eyes and some mild discomfort. However, an allergic reaction to latex, especially latex gloves and/or condoms is a much more serious allergy then just that. Quite honestly an allergic reaction to latex condoms/gloves can cause shock and even death. There are no studies pertaining to just latex condoms. The following article is based on exposure to latex and health care employees that wear latex gloves to prevent exposure to blood borne pathogens. However, certain parallels may be drawn.

The issue is so serious that OSHA has developed a Bulletin about exposure to latex ( Please see: http://www.osha.gov/dts/shib/shib012808.html ). Currently there are no federal regulations concerning latex gloves or condoms however twenty-five states, Puerto Rico and the Virgin Islands have all developed their own standards and enforcement policies for latex exposure.

Who is Allergic to Latex…

According to OSHA;

“With more widespread use of NRL (natural rubber latex) gloves after 1987 there was an increase in reported NRL sensitization and allergic reactions among patients and among employees, notably health care employees. In rare cases, these allergic reactions can be fatal…The majority of health care employees are able to use NRL products to care for most patients. However, some employees may develop sensitivity to NRL upon repeated exposure.”

An allergic reaction to latex condoms is actually something that can develop over time. A particular person may not be sensitive to latex at first but through prolonged and repeated exposures they may actually become seropositive for anti-latex antibodies. More disturbing is that it is currently impossible to determine who may or may not become allergic over time. According to OSHA;

“It is not possible, at present, to determine which employees will become sensitized or symptomatic on exposure to NRL allergenic proteins. Moreover, the extent of an individual employee’s reaction, or the length of time required for such allergic reactions to develop in a sensitized employee, cannot be ascertained. Finally, it is not possible, at present, to predict which individuals will progress from sensitization or from local contact urticaria to more dangerous allergic reactions, nor when this progression may occur.”

Typically, 1-17% of the population is sensitive to latex. Not surprisingly those that are exposed to latex on a regular and repeated basis, tend to be in the high range while the general population are in the lower range. Sensitivity has been found in;

“Health care employees particularly affected include operating room personnel, dental patient care staff, special-procedure and general-medical nurses, laboratory technicians, and hospital housekeeping personnel consistently exposed to NRL. NRL sensitization or allergic response or reaction has also been reported in greenhouse employees, hairdressers,doll manufacturing employees, and employees in a glove manufacturing plant.”

If condom use increases in the adult industry I am sure that “adult performer” will be added to the list of employees noted above. Based on the several studies it would be safe to assume that between 1-17% of all performers may develop a latex sensitivity from repeated condom use. Assuming there are 1500 performers that currently work in Los Angeles adult industry this condition could affect anywhere between 15 to 255 of the current performers (Please see: http://www.latexallergyresources.org/statistics ).

Symptoms of Latex Allergy/Sensitivity…

If someone is allergic to latex what are the symptoms that one can expect to experience ? OSHA has defined reactions into three categories;

“These categories include reactions that vary from localized redness and rash; to nasal, sinus, and eye symptoms; to asthmatic manifestations, including cough, wheeze, shortness of breath, and chest tightness; to in some cases, severe systemic reactions with swelling of the face, lips, and airways that may progress rapidly to shock and, potentially, death.”

The most basic reaction is contact dermatitis which OSHA describes as;

“The allergic contact dermatitis has an appearance similar to the typical poison ivy reaction, with blistering, itching, crusting, oozing lesions. Also, like poison ivy, this dermatitis appears 24-72 hours after the use of gloves or exposure to other sources of chemical sensitizers.”

Obviously, having blistering, oozing and itchy lesions on an adult performer’s genitals is something that doesn’t inspire thoughts of sexiness. And of course those performers will lose considerable income even waiting for the lesions to heal before trying to work again. However, the more important aspect to this issue is the very real potential thread of shock or even death within minutes;

“A type I reaction can occur within seconds to minutes of exposure to the allergen (in the case of NRL, to allergenic natural rubber proteins), either by touching a product with the allergen (e.g., gloves) or by inhaling the allergen (e.g., powder to which natural rubber proteins from gloves have adsorbed). When such a reaction begins in highly sensitive individuals, it can progress rapidly from swelling of the lips and airways to shortness of breath, and may progress to shock and death, sometimes within minutes.”

It is imperative that anyone in the sex worker community, not just those that perform in adult entertainment, be aware of latex sensitivity and allergies. I strongly recommend that everyone reading this article do their own research and talk to their own healthcare professional.

A great start place is at the website of the American Latex Allergy Association ( Please see: http://www.latexallergyresources.org/ ). I would also recommend visiting the U.S. Department of Labor’s website as well ( Please see: http://www.osha.gov/SLTC/latexallergy/index.html ).

There are options to using latex condoms. Non latex condoms are manufactured for those that are either allergic or have developed a sensitivity to latex. However, it should be noted that lambskin condoms do not contain latex but they are ineffective for stopping the transmission of the HIV virus. A non-latex Polyurethane condom must be used.

 

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Condoms & The First Amendment…

Los Angeles County’s Measure B, the “Condoms in Porn” law, has caused much discussion in the media as well as the industry as to whether such a mandate is a violation of a performer and producer’s First Amendment free speech rights. Whether it is a violation of the U.S. Constitution will be left to the courts to decide. It is, without question, a law that can be challenged. The United States’ Constitution is the supreme law of the land. Which means no other law can violate the rights guaranteed by the Constitution – not even workers’ safety laws.

In regulating commercial speech the government has to show that condom law passes what is known as the Central Hudson test ( Please see: http://itlaw.wikia.com/wiki/Commercial_speech ). In regards to free speech and pornography, the United States’ Supreme Court has indeed ruled that hardcore pornography is legal and in fact is protected by the First Amendment and therefore entitled to protection under the Constitution ( Please see: http://en.wikipedia.org/wiki/Miller_v._California ).

Many have also questioned who holds such free speech rights – the producers or the performers ? The answer is that both producers and performers hold equal rights in that regard. Performers, like dancers in gentlemen’s clubs, do in fact express themselves while performing in an adult scene or movie. There are several U.S. Supreme Court decisions that hold a dancer’s nude dancing is in fact expressive free speech. ( Please see: http://en.wikipedia.org/wiki/Barnes_v._Glen_Theatre,_Inc. )

Can Free Speech Be Restricted ?

Commercial free speech can be regulated. There are two types of restrictions on commercial free speech, content and non-content based restrictions. An example of content based restriction would be a law that prohibited a newspaper from publishing the name of a rape victim. An example of a non-content based restriction would be zoning laws regulating the time, manner and place a business owner could operate a gentlemen’s club within a city or county. Content based restrictions require the court to impose a “strict scrutiny” test, meaning that the law has to promote a compelling governmental interest and it has to do so in the least restrictive means possible. For non-content based restrictions the court will used what is called “intermediate scrutiny,” meaning the law has to promote a significant, substantial or important government interest and it must be done in a way that is narrowly tailored to the governmental interest. Under intermediate scrutiny there are basically two tests the court uses 1) time, place and manner and 2) incidental, which means regulations that are aimed at conduct that is not speech but do infringe on speech.

A government mandated condom law would be a regulation that is not aimed at actual speech but rather conduct however it does infringe on the free speech rights of the producers and performers. In U.S. Supreme Court cases that have primarily been focused on gentlemen’s clubs, those looking to restrict nude dancing have used the argument that regulations imposed on them are merely trying to alleviate the “secondary effects” that gentlemen’s clubs supposedly cause such as crime, prostitution and blight on the neighborhood they are located in. I imagine that the government may also try to use a secondary effects argument in favor of the condom law, if it were ever to be challenged. I believe that they will claim that condoms in porn will protect the health of the general public since members of the adult industry will spread disease to those in the general public. Whether this argument will work is unknown.

None the less, a government mandated condom law is a restriction of free speech of both performers and producers. Since it is not content based, if challenged in court, it would receive intermediate scrutiny and the court would examine whether the government has a significant, substantial or important governmental interest and whether the law is narrowly tailored to those goals.

Therefore the question will be is the health and safety of workers in the adult industry a significant, substantial or important governmental interest. And if so, is the condom law narrowly tailored to promoting that goal. In other words does the law restrict the least possible amount of speech to accomplish the goal of protecting adult industry workers.

More than likely the courts will find that the health and safety of adult performers are an important governmental interest. The argument on behalf of the industry would probably be that STI testing achieves the same goal of the condom mandate without restricting any speech.

The industry could also make the argument that only the state of California has the ability to regulate workplace safety and therefore the law exceeds the power of Los Angeles County or any city that adopts a similar law such as the City of Los Angeles Safer Sex in Adult Films Ordinance.

In the coming weeks I will be writing more on this subject. However, if you are interested in this issue I suggest that you do some research and educate yourself. Especially if you are a producer or performer in the industry. You might be interviewed by someone in the media in the coming weeks as Election Day approaches.

A good starting primer on First Amendment issues is attached to this article. It was written by an attorney for the Congressional Research Service in October 2009. It basically states how the government can regulate free speech and how it needs to go about doing it. Its an inside look inside their “playbook.”

FreeSpeechPrimer

 

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Can the HIV Virus Pass Right Through Latex Condoms ?

In my research on whether condoms contain the cancer causing chemical Nitrosamines I also stumbled upon other interesting facts about condoms. The most interesting came from the June 1993 Rubber World Magazine ( http://www.rubberworld.com/ ). Rubber World Magazine is the rubber industry’s technical trade magazine. The author of the article is Dr. C.M. Roland, Head of Polymer Physics Naval Research Laboratory. Here is his brief bio;


Biographical Sketch: Mike Roland is a physical chemist and head of the Polymer Physics Section at the Naval Research Laboratory. His research interests are the mechanical and viscoelastic properties of materials. He received his PhD in chemistry from the Pennsylvania State University in 1980, and prior to joining NRL in 1986 was a group leader at the Firestone Central Research Laboratories in Akron, OH. From 1991 to 1999 he edited the American Chemical Society journal “Rubber Chemistry & Technology”, and currently is on the editorial board of “Macromolecules”. His awards include the Sparks-Thomas Award (ACS) in 1991, Edison Award (NRL) in 2000, Melvin Mooney Award (ACS) in 2002, Sigma Xi Award for Pure Science (NRL) in 2002, and he became a Fellow of the Institute of Materials, Minerals, and Mining (UK) in 2008. He has authored over 300 publications and holds 13 patents.

Dr. Roland’s has stated that latex condoms are actually ineffective in stopping the spread of the HIV virus. His research showed that latex condoms, on the molecular level, have holes in them that are simply too large to stop the HIV virus from passing through the latex membrane.

I suggest that everyone reading this article read his article in its entirety. You can find it here -> http://www.thefreelibrary.com/The+barrier+performance+of+latex+rubber.-a014089514. I will quote some of the more important facts from his article.

Dr. Roland states;

“The defining feature of viruses is their diminutive size; electron microscopy reveals the AIDS virus to be only 100 to 120 nm (0.1 micron) in size. This is consistent with their passage through polycarbonate filters with holes in the 0.1 to 0.2 [Micro]m range.  The size of HIV is 60 times smaller than the bacteria causing syphilis and 450 times smaller than human sperm… Clearly, the use of a condom or rubber glove for barrier protection from a virus represents a different problem from that of preventing bacterial infection or conception.”

Condoms were developed to prevent pregnancy. They have also proven to be useful in preventing certain bacterial sexually transmitted disease such as gonorrhea, chlamydia and syphilis. However, according to Dr. Roland, based on the extremely small size of the HIV virus – latex condoms are not completely effective to prevent the spread of the HIV virus.

Roland goes on to state that the “water-leakage” test used by many condom manufacturers is simply not suitable to test for HIV transmission rates through the latex membrane. Basically HIV is smaller then even water molecules, Roland states;

“These results indicate that the water leakage test is not adequate for the detection of the small holes relevant for viral transmission. This was directly demonstrated in a study of the ability of latex condoms to prevent passage of fluorescence labeled polystyrene microspheres, 110 nm in diameter (i.e., equivalent in size to the AIDS virus). One-third of the condoms, none of which contained holes large enough to be rejected by the water leakage test, allowed passage of the microspheres, with fluid flow rates lying in the range of 0.4 to 1.6 nanoliters per second.”

He based his opinion on the findings of a 1992 condom research study performed by the FDA. Physical science researchers tested the ability of 89 undamaged latex condoms manufactured in the US to prevent passage of HIV size particles under simulated physiologic conditions at their Food and Drug Administration laboratory in Rockville, Maryland. You can read an abstract of their research here -> http://www.ncbi.nlm.nih.gov/pubmed/1411838

Here’s is what the FDA found;

“Leakage of HIV-sized particles through latex condoms was detectable for as many as 29 of the 89 condoms tested. Worst-case condom barrier effectiveness (fluid transfer prevention), however, is shown to be at least 10 times better than not using a condom at all, suggesting that condom use substantially reduces but does not eliminate the risk of HIV transmission.”

These findings have nothing to do with whether the condom was properly used. These test results only speak to whether the condom itself has holes in it large enough to allow the HIV virus to pass through it. Obviously, not properly using a condom, as well as breakage and slippage will only increase its ineffectiveness.

Before anyone throws anything at their screen in anger allow me to discuss the National Institute of Health’s condom effectiveness study released in July of 2001. To address the questions raised by Roland and other researchers, the NIH held a conference in June 2000 where this issue was investigated further. The report was limited to evaluating the effectiveness of male latex condoms used during penile-vaginal intercourse. It examined evidence on eight STIs—HIV, gonorrhea, chlamydia, syphilis, chancroid, trichomoniasis, genital herpes and genital human papillomavirus. The data presented in the report found that male latex condoms are effective in preventing the most serious STI (HIV), the most easily transmitted STIs (gonorrhea and chlamydia) and another important sexually transmitted condition (unplanned pregnancy).

However, the NIH report only stoked the fires of additional debate as to the effectiveness of the male condom to prevent the transmission of STDs. Many attacked the report on political as well as scientific basis.

None the less, no matter what side of the “condoms in porn” debate you may be on the facts are relatively clear. Condoms help in preventing the transmission of HIV but are not 100% effective in the complete prevention of HIV transmission.

One study of heterosexual couples by Department of Preventive Medicine and Community Health of the University of Texas found that in cases were one partner was HIV+ and the other was HIV-, a condom’s effectiveness;

“at preventing HIV transmission is estimated to be 87%, but it may vary between 60% and 96%.”

(Please see http://www.ncbi.nlm.nih.gov/pubmed/10614517 )

I strongly suggest that everyone do their own research as to this topic. There are many competing voices and view points. Please educate and decide for yourself.

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Performers: Can Condoms Cause Cancer ?

As a former employment and workers’ compensation attorney I often had to research the potential side-effects of different chemicals my clients were exposed to while “on-the-job.” Since Cal-OSHA, the City of Los Angeles and now possibly the County of Los Angeles all want to make condoms mandatory for the industry one of the first questions that everyone should be asking is – Are condoms safe ?

I realize that seems like a strange question to ask since the motivating idea behind the use of condoms is to make the industry more safe from the spread of different STDs. However, the question needs to be asked since condoms may in fact do more harm than good.

I experienced this same issue several years ago, as an attorney for employers in California, when there was a push to require back braces for those that worked in warehouses. The common belief was that a back brace worn by an employee would give that employee more back support and thus cut down the rate and severity of low back injuries in the state’s workforce. It seemed like a reasonable position. Until studies were performed that showed that wearing a back brace actually INCREASED the number of back injuries since those wearing them believed it provided them with some sort of magically lifting powers. By wearing a back brace they actually tried to lift heavier items they would not have tried to lift if they did not wear a back brace. And thus, the number of low back injuries actually increase because of their use.

Therefore I wondered if there were studies about condoms as to the same issue. Does wearing a condom provide a sense of superior safety which may result in actual riskier behavior. So I did research, as attorneys often do.

What I found is much more concerning and confusing. Condoms contain a substance that in known to cause cancer. And not only does it contain a substance known to cause cancer, that substance, known as Nitrosamines, is actually a REGULATED chemical under California Occupational Safety & Health Regulations ( Please see http://www.dir.ca.gov/title8/339.html ). According to the United States Department of Labor, exposure (to Nitrosamines) by all routes should be carefully controlled to levels as low as possible (Please see http://www.osha.gov/dts/chemicalsampling/data/CH_258000.html ).

And here is what US OSHA states Nitrosamines can do to the human body;

Potential Symptoms: Irritation of eyes, skin, respiratory tract; nausea, vomiting, diarrhea, abdominal cramps; headache; sore throat, cough; weakness; fever; enlarged liver, jaundice; decreased liver, kidney, and pulmonary function; low platelet count; [potential occupational carcinogen]

Health Effects: Cancer (HE1); Liver cirrhosis (HE3); Suspect teratogen (HE5)

Affected Organs: Liver, kidneys, lungs

A German study found that; ( Please see http://www.dw.de/dw/article/0,,1220847,00.html )

The condoms, which were kept in a solution with artificial sweat, exuded huge amounts of cancer-causing N-Nitrosamine from its rubber coating. Researchers measured amounts of N-Nitrosamine, that were way above the prescribed limits for other rubber products such as baby pacifiers.

“N-Nitrosamine is one of the most carcinogenic substances,” the study’s authors said. “There is a pressing need for manufacturers to tackle this problem.”

Then I thought to myself this cannot be true. Where are all the penis & cervical cancer cases ? Surely the world would have heard reports of an increase in these types of cancers if in fact the chemicals in condoms caused cancer. So I did more research, as attorneys often do. And then I found the actual study performed by the German researchers. It is published on the National Institute of Health Website (Please see http://www.ncbi.nlm.nih.gov/pubmed/11759152 ).

Here is a excerpt from the study; (I highlighted the important parts relevant to this discussion)

Previously, endogenous nitrosamine formation in the vagina has been suggested as a cause of cervical cancer. It was speculated that exogenous N-nitrosamines and N-nitrosatable compounds from condoms may also lead to genital cancer. Therefore, we reviewed the literature and calculated the risk for the induction of tumors by nitrosamines from condoms. In vitro Biaudet et al. (1997) found up to 88 ng nitrosatable compounds migrating from condoms to cervical mucous within 24 hrs. During sexual intercourse about 0.6 ng may migrate in the female genital mucous membranes because of the short contact to the condom, e.g. 10 min. Comparable amounts of nitrosamines may also migrate in the penile skin. Estimating 1500 contacts to condoms during lifetime (50 condoms/year for 30 years) this may result in the adsorption of up to 0.9 microgram nitrosamines in total.

This study was based on the use of condoms for personal sexual activity NOT commercial sexual activity. The researchers used 10 minutes for an exposure period having sex once a week for 30 years. Based on that they concluded that condoms did not present a risk of increased cancer rates. I tried to find an example of another study where condom use was much greater but I could not find one (Perhaps if someone can find a research paper as to the use of condoms for sex-workers and increased cancer rates from exposure to Nitrosamines that would be most beneficial).

Taking their research a step farther and applying it to the industry sex practices, it is possible for a male performer will have to use a condom for up to 6 hours a day (2 scenes)  for up to 5 days a week. This is 17,900% increase in exposure over how much time the typical man would wear a condom in his lifetime according to the German’s study. And that is only in one week of exposure to the male performer. Compound that number by years of performing and now there is a substantial increased risk of developing cancer, even using this study’s parameters.

So here we have Cal-OSHA demanding that the industry use condoms to comply with blood-borne pathogen laws when their own regulations indicate that Nitrosamines cause cancer and there has been NO studies performed that show that long term industrial exposure to the Nitrosamines in condoms is safe.

Why hasn’t this issue been raised in the debate as to whether condom use should be mandatory? Why are condoms being forced on the industry before any controlled studies have been completed as to high exposure and long term effects of Nitrosamines are more closely examined ?

Oh yes, because condoms are being pushed by the AIDs Healthcare Foundation and the health and safety of performers would only get in the way of their safer sex message for the general public, who will never develop cancer from the use of a condom.

 

 

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Returning to Work ? Somethings You Should Know…

September 3, 2012, Labor Day, ironically, is the day that the FSC/APHSS has determined to be the best day to return adult performers to a regular production schedule, a mere 10 days after receiving a prophylactic antibiotic shot to hopefully cure the syphilis outbreak in the industry. Now that the moratorium on production has been lifted, be safe and here’s some facts that you should know before you head off to set;

  • There are 9 performers in adult confirmed positive for syphilis as of today;
  • Syphilis may take up to 90 days to detect through testing with the average range being 21 days;
  • Once you test positive for syphilis you may always test positive for syphilis;
  • If you are receiving your test results through APHSS you may not know that you are working with another performer that previously tested positive for syphilis – the APHSS database only tells you whether someone is “cleared” to work;
  • There is a disagreement between APHSS and TTS as to the proper test to use to detect syphilis;
  • APHSS states that their required and mandatory re-test can detect syphilis at 14 days while TTS states two tests are necessary to detect it this quickly.
  • Only 300 performers opted to take the antibiotic shot;
  • Despite the moratorium on production, there were some production companies and agents that continued to book scenes;
  • Some performers continued to escort during the moratorium;
  • Condoms may not protect you from catching or spreading syphilis;
  • Treatment for syphilis may make birth control pills ineffective;
  • Often those with syphilis do not show any symptoms of the disease;
  • In the primary and secondary stages syphilis is very contagious;
  • If a performer’s off camera sex partner(s) were not treated it is possible to reinfect those that were treated;
  • An antibiotic shot is not a vaccine and a performer can be reinfected quite easily;
  • If you catch syphilis, receive treatment and then get reinfected it will require 1 shot a week for 3 weeks to cure it;
  • Having an open syphilis sore makes it 2 to 5 times more likely that you can transmit/contract HIV during sex.

If there are any facts I have let off this list please feel free to add a comment to this article and I will add them to the list.

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Performer Testing… Is There a Hidden Agenda ?

I hate having to wear my tinfoil hat as one of my Twitter followers pointed out but sometimes it is necessary. Several days ago I posted an article about “Who Should Pay for Performer Testing.” Now I feel compelled to discuss what testing may or may not mean to those who actually control it.

Most industry members see testing as a profitable money making endeavor for whomever controls it. While others believe that those that control the test results can also control the release of information in case of a STI outbreak and might even be able to minimize potential legal liability. Some just see it as a “pissing contest” between several egos.

There is a third potential possibility as well. Many people are now starting to understand that information is worth money. Data mining is a big time business in this world. STI testing results are indeed worth money to the United States government as well as corporations developing new drugs for STIs.

If you follow me on Twitter you might have noticed that on August 9, 2012 I tweeted about how the National Institutes of Health offer grant money to study HIV screening and testing ( http://grants.nih.gov/grants/guide/pa-files/PA-11-118.html ) On Saturday, August 11, 2012, Talent Testing Service announced that they just formed a partnership with University of California, Los Angeles on a sexual health study ( http://business.avn.com/company-news/Talent-Testing-Service-Partners-with-UCLA-on-Sexual-Health-Study-485112.html ).

Performers wanting to receive a $40 gift card and free follow up STI medical care can participate in the study. Which essentially means that UCLA will have the right to their test results and medical care to use as part of their study – in essence a performer waives their right of privacy in so much that the information will could be sold. I am sure this information will be sanitized – meaning names will be removed since UCLA probably doesn’t care about a performer’s name or identifying information – rather UCLA cares about the empirical data – how often one tests, how often one catches an STI, the treatment received for such, how long the treatment lasted and how effective the results of the treatment were. That could be a data goldmine for a drug company trying to develop the next anti-biotic to fight any one of the many STIs on the planet.

How much can a group or organization receive for this type of information ? According to the link I posted to the National Institutes of Health’s grant overview information website, there is no limit. However if you want more than $500,000.00 you have to call the NIH directly. Apparently you cannot just email the application for a grant requests at that level.

I am not saying that Talent Testing Services received the grant themselves, however it does appear that UCLA has indeed received grant money for the study of STIs. The performers present a very unique situation in the world when it comes to STI research. I am going to bet that no where else in the United States does a group of people test for and possibly contract STIs as much as performers do in porn. And now that the testing cycle is being pushed to every 14 days, the amount of information is only going to increase and therefore the potential gold mine of data will increase in value as well.

As I tweeted, “there is gold in them thar HIV tests !”

 

 

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